State Consumer Disputes Redressal Commission
National Insurance Co. Ltd. vs Gagan Pal Singh on 30 May, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
FIRST APPEAL NO. 216 / 2011
Divisional Manager, National Insurance Company Limited
Canal Road, Tikonia, Haldwani
District Nainital
......Appellant / Opposite Party
Versus
Sh. Gagan Pal Singh S/o late Sardar Surjeet Singh
R/o Jail Road, Sheesham Bagh, Heeranagar
Haldwani, District Nainital
......Respondent / Complainant
Sh. Deepak Ahluwalia, Learned Counsel for the Appellant
Sh. Pankaj Raturi, Learned Counsel for Respondent
Coram: Hon'ble Mr. Justice B.S. Verma, President
Mr. D.K. Tyagi, H.J.S., Member
Dated: 30/05/2017
ORDER
(Per: Justice B.S. Verma, President):
This appeal under Section 15 of the Consumer Protection Act, 1986 is directed against the order dated 04.07.2011 passed by the District Forum, Nainital in consumer complaint No. 68 of 2008.
2. Briefly stated the facts giving rise to the appeal are that the complainant was the registered owner of Toyota Qualis bearing registration No. UA04-A-8606, which he had purchased from Sh. Chirangi Lal Jaiswal. The complainant has got the registration certificate of the vehicle transferred in his name from the RTO, Haldwani. Before purchase of the vehicle by the complainant, the same was insured with the appellant - opposite party in the name of Sh. Chirangi Lal Jaiswal, the previous owner of the vehicle, for the period from 29.01.2007 to 28.01.2008 at an IDV of Rs. 3,68,160/-.
2After purchase of the vehicle, the complainant approached the insurance company for transfer of the insurance certificate in his favour and completed all the formalities. The surveyor of the insurance company also inspected the vehicle on 04.06.2007, for which sum of Rs. 200/- was charged from the complainant. The complainant was told that his name would be automatically entered in the insurance policy after a month and thereafter the insurance policy would be issued in his favour. In the night of 24/25.06.2007, the insured vehicle was stolen from Bholanath Garden, Haldwani, FIR whereof was lodged with the P.S. Haldwani and case crime No. 3742/2007 under Section 379 IPC was registered. The intimation regarding theft of the insured vehicle was given to the insurance company. On 25.03.2008, the learned Additional Chief Judicial Magistrate, Haldwani accepted the Final Report submitted by the police, which was submitted by the complainant with the insurance company on 27.03.2008, which the insurance company refused to accept. The insurance company did not pay the claim amount to the complainant. Therefore, alleging deficiency in service on the part of the insurance company, the complainant filed a consumer complaint before the District Forum, Nainital.
3. The insurance company filed written statement before the District Forum and pleaded that the insurance policy was issued in the name of Sh. Chirangi Lal Jaiswal; that the complainant never informed the insurance company regarding transfer of vehicle in his name; that the complainant was not having any insurable interest in the subject vehicle and that there is no deficiency in service on their part.
4. The District Forum after perusal of the evidence on record allowed the consumer complaint vide impugned order dated 3 04.07.2011 and directed the appellant to pay compensation of Rs. 3,68,160/-, the IDV of the vehicle, to the respondent - complainant together with pendente lite and future interest @6% p.a. and Rs. 3,000/- towards litigation expenses. The District Forum has directed the complainant to handover the ownership documents of the vehicle / letter of subrogation to the insurance company on the date of compliance of the order. Aggrieved by the impugned order, the insurance company has filed the present appeal.
5. We have heard the learned counsel for the parties and gone through the record.
6. The insurance company has taken the stand that since on the date of theft of the vehicle, the same was insured in the name of Sh. Chirangi Lal Jaiswal, the erstwhile registered owner of the vehicle and hence the complainant had no insurable interest in the vehicle. Therefore, the claim was not payable by the insurance company.
7. It is true that the vehicle was registered in the name of the complainant w.e.f. 30.05.2007, as would be evident from the copy of the registration certificate of the vehicle (Paper No. 4/1 of the original record). However, the vehicle was insured in the name of Sh. Chirangi Lal Jaiswal for the period from 29.01.2007 to 28.01.2008, as would be evident from the copy of the insurance policy (Paper No. 4/2). There is no dispute between the parties that till the date of theft of the vehicle, the insurance policy of the vehicle was not transferred in the name of the complainant and the vehicle stood insured in the name of Sh. Chirangi Lal Jaiswal.
8. The complainant has taken the stand that after purchase of the vehicle, he had approached the insurance company for transfer of the 4 insurance certificate in his favour, but there is nothing in writing on record to show that the complainant has submitted any application with the insurance company, indicating therein that he has purchased the vehicle from Sh. Chirangi Lal Jaiswal and got the registration certificate of the vehicle transferred in his name and requested the insurance company for transfer of the insurance policy in his favour. The District Forum has placed reliance on the vehicle inspection report (Paper No. 19/4), duly signed by Sh. Sanjay Belwal, inspecting officer of the insurance company. It is true that the vehicle was inspected by the surveyor of the insurer on 04.06.2007 and the complainant has signed the said report below the space provided for signatures of the insured / representative, but in the said report, the insured's name has clearly been mentioned as Sh. Chirangi Lal Jaiswal. It was the duty cast upon the complainant to submit a proper application with the insurer for transfer of the insurance certificate in his favour, which he did not do. Merely because when the vehicle was inspected by the inspecting officer of the insurance company, the same was in the custody / possession of the complainant, it can not be said that the insurance policy stood transferred in his favour. The District Forum has wrongly placed reliance on the vehicle inspection report and has not considered the relevant provisions of law with regard to transfer of insurance policy. It is also worth to mention here that the registration certificate of the vehicle was transferred in the name of the complainant on 30.05.2007 and the same was stolen in the night of 24/25.06.2007 and hence the complainant has also violated Section 157(2) of the Motor Vehicles Act, 1988, by not applying in writing to the insurance company within the stipulated period of 14 days' for transfer of insurance policy in his name.
9. The vehicle was insured under Package Policy. GR-17 of India Motor Tariff provides that in case of package policies, transfer of the 5 "Own Damage" section of the policy in favour of the transferee, shall be made by the insurer only on receipt of a specific request from the transferee along with consent of the transferor and a fresh proposal form duly completed is to be obtained from the transferee in respect of both liability only and package policies. The complainant has not filed on record any fresh proposal form or application submitted by him with the insurer for transfer of the insurance certificate in his favour. Learned counsel for the appellant - insurance company cited a decision of the Hon'ble Apex Court in the case of Complete Insulations (P) Ltd. Vs. New India Assurance Co. Ltd.; 1996 ACJ
65. In the said case, the transferee intimated the transfer of vehicle and requested the insurance company to transfer the insurance policy. The policy was not transferred and the vehicle was damaged in accident. It was held that fiction of Section 157 of the Motor Vehicles Act, 1988 is limited to third party risks and the transferee is not a third party qua the vehicle. Learned counsel also cited a decision of the Hon'ble National Commission in the case of Vijayan M. Aingoth Vs. Bajaj Allianz General Insurance Co. Ltd.; I (2016) CPJ 446 (NC), wherein it was held that transfer of insurable interest under "Own Damage" package section of policy can be done only with the consent of transferor. In the said case, the complainant has neither produced any evidence to prove that he applied for insurance in writing nor he has produced any evidence to show that previous owner gave his consent for transfer of insurance policy in his name. In such circumstances, the repudiation of the claim by the insurer was held to be justified. The said decision fully applies to the facts and circumstances of the instant case. Learned counsel also cited another decision of the Hon'ble National Commission in the case of New India Assurance Co. Ltd. and another Vs. Akbar; 2014 (1) CPR 397 (NC), wherein it was held that inspite of intimation of transfer of vehicle by the complainant to the insurance company, the complainant 6 is not entitled for indemnification of damages to the vehicle till the policy is transferred in his name. Learned counsel further cited a decision of the Madhya Pradesh State Consumer Disputes Redressal Commission, Bhopal in the case of Oriental Insurance Co. Ltd. Vs. Avinash Shivhare and others; IV (2016) CPJ 6A (CN) (MP), wherein it was held that though the complainant submitted letter to insurance company seeking transfer of policy in his favour, but since the policy had not been transferred and it stood in the name of previous owner, the complainant is not entitled to the sum insured under the policy, as he had no insurable interest under the policy.
10. Learned counsel for respondent - complainant cited a decision of the Hon'ble National Commission in the case of National Insurance Company Limited Vs. Capt. Ajay Singh Yadav and another; II (2008) CPJ 71 (NC). In the said case, due to fault on the part of the insurer, the policy was not transferred in the name of transferee. In the present case, as is stated above, the complainant has not filed any evidence to show that he has applied in writing with the insurer for transfer of the insurance policy in his name and complied with the procedure provided under GR-17 of India Motor Tariff. Learned counsel also cited another decision of the Hon'ble National Commission in the case of New India Assurance Co. Ltd. and another Vs. Faiyaz Khan and another; II (2015) CPJ 126 (NC). In the said case, after sale of vehicle, fresh insurance cover during subsistence of original insurance policy was issued. It was held that this change of address on second cover note shows that the insurance company was aware of change of ownership of vehicle. There is no such situation in the present case. Learned counsel also cited a decision of Delhi State Consumer Disputes Redressal Commission, New Delhi in the case of National Insurance Co. Ltd. Vs. Ram Gopal Sharma; III (2007) CPJ 367, wherein it was held that the 7 transfer of insurance policy is merely a formality and once the vehicle is transferred, the insurance policy automatically stood transferred for indemnification of loss. The said decision does not hold good in view of the latest law on the subject. The other decisions cited by the learned counsel for respondent also do not apply to the facts and circumstances of the case and do not pertain to the controversy involved in the present matter. Since the complainant had no insurable interest in the vehicle on the date of loss and the insurance policy was not transferred in his name and hence there exists no valid contract of insurance between the parties and consequently, the question of breach of the terms and conditions of the policy being not germane and fundamental does not arise.
11. The District Forum has not properly considered the facts and circumstances of the case as well as law on the subject and has erred in allowing the consumer complaint per impugned order, which can not legally be sustained and is liable to be set aside. Resultantly, the appeal deserves to be allowed.
12. Appeal is allowed. Order impugned dated 04.07.2011 passed by the District Forum is set aside and consumer complaint No. 68 of 2008 is dismissed. The statutory amount of Rs. 25,000/- deposited by the appellant at the time of filing the appeal, be released in its favour. No order as to costs.
(D.K. TYAGI) (JUSTICE B.S. VERMA) K